IN THE CASE OF:	  

	BOARD DATE:	  10 July 2008

	DOCKET NUMBER:  AR20080007022 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of his discharge.

2.  The applicant states that he was set up by his peers within the platoon with false statements and verbal lies.  He also adds that he needs his discharge upgraded so he may qualify for Veterans Administration (VA) medical and dental benefits.

3.  The applicant did not provide any additional documentary evidence in support of his application.  

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.


2.  The applicant's records show that he enlisted in the Regular Army for a period of 3 years on 14 June 1977.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 76P (Stock Control Specialist).  The highest rank/grade he attained during this period of military service was private first class (PFC)/E-3.

3.  The applicant's record shows that he was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).  His records do not reveal any significant acts of valor during his military service.  

4.  The applicant's record reveals an extensive history of disciplinary problems which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 6 July 1977, for absenting himself, without authority, from the unit on or about 26 June 1977, and for being disorderly in the company area, on      26 June 1977.  His punishment consisted of forfeiture of $100.00 pay per month for one month and 20 days of restriction;

	b.  on 27 September 1978, for being absent without leave (AWOL) during the period on or about 28 August 1978 through on or about 1 September 1978.   His punishment consisted of reduction to PV2/E-2 (suspended for 90 days), forfeiture of $100.00, and 14 days of extra duty;

	c.  on 20 April 1979, for being AWOL during the period on or about 4 April 1979 through on or about 11 April 1979.  His punishment consisted of reduction to PV2/E-2, forfeiture of $233.00 pay per month for 2 months (one month's forfeiture of $233.00 suspended for 120 days), 30 days of restriction, and 30 days of extra duty;

	d.  On 7 May 1979, the suspension of punishment of forfeiture of $233.00 imposed against the applicant on 20 April 1979 was vacated and the unexecuted portion of the applicant's punishment was ordered duly executed; and

	e.  on 27 November 1979, for leaving his place of duty (weapons cleaning detail) without authority, on or about 17 November 1979.  His punishment consisted of reduction to the rank/grade of private (PVT)/E-1 (suspended for 90 days), forfeiture of $75.00 pay per month for 1 month, 14 days of restriction, and 14 days of extra duty.




5.  On 12 October 1979, the applicant was tendered a Letter of Reprimand for harassing other Soldiers of the unit and for his overall belligerent attitude towards his responsibilities in the Army, which were indicative of his poor performance.

6.  On 24 October 1979, the applicant's immediate commander initiated a Bar to Reenlistment Certificate against the applicant.  The immediate commander stated that the applicant consistently demonstrated he was unfit for duty due to his poor attitude towards military life.  His inability to adapt socially or emotionally to the rigors of military service resulted in his failure to demonstrate promotion potential.  He was counseled repeatedly, both verbally and in writing, and the unit made a sincere effort to rehabilitate the applicant through assignment to different sections; however, his inability to accept or follow instructions and his belligerent attitude towards his duty nullified any attempts to rehabilitate him.

7.  On 24 October 1979, the applicant was furnished with a copy of the Bar to Reenlistment Certificate; however, he elected not to submit a statement on his own behalf.  Subsequently, on the same date, the applicant's battalion commander approved the Bar to Reenlistment Certificate.

8.  On 8 January 1980, court-martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 4 December 1979 through on or about 3 January 1980.  

9.  On 10 January 1980, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

10.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 
11.  On 10 January 1980, the applicant's immediate commander remarked that the applicant's AWOL was caused by his dislike for the Army.  The immediate commander added that in view of the applicant's attitude towards the Army and his lack of rehabilitative potential, approval of the discharge was in the best interest of the Army.  The immediate commander recommended approval of the applicant’s discharge with an Under Other Than Honorable Conditions Discharge Certificate.

12.  On 10 January 1980, the applicant's senior commander recommended approval of the discharge with Under Other Than Honorable Conditions Discharge Certificate.

13.  On 16 January 1980, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army regulation 635-200 and directed he receive an Under Other Than Honorable Conditions Discharge Certificate, and be reduced to the lowest enlisted grade.  Accordingly, the applicant was discharged on 25 January 1980.  The DD Form 214 he was issued at the time of his discharge shows that he was discharged for the good of the service with an Under Conditions Other Than Honorable character of service.  This form further confirms the applicant had completed a total of 2 years, 5 months, and 21 days of creditable active military service and had 54 days of lost time due to AWOL.

14.  On 2 December 1993, the Army Discharge Review Board (ADRB) denied the applicant's petition for an upgrade of his discharge.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

16.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

17.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  There is no evidence in the applicant's records and the applicant failed to submit any evidence that shows he was set up by other members of the platoon. Furthermore, the applicant's records reveal an extensive record of disciplinary problems including 5 instances of Article 15, a Letter of Reprimand, a Bar to Reenlistment Certificate, multiple instances of AWOL, and failure to respond to counseling or rehabilitative efforts.

3.  The applicant’s record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trail by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

4.  Based on his repeated record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable discharge.

5.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.







BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



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 _   _______   ______________
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20080007022





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ABCMR Record of Proceedings (cont)                                         AR20080007022



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